Significant changes and additions have been introduced in Rule 14 (“Summons”) under the 2019 Proposed Amendments to the 1997 Rules of Civil Procedure (hereinafter, “2019 Amendments”), which takes effect on 1 May 2020. The summary of other Rules may be tracked through the Menu.

Among the significant changes are: (a) power of the court to dismiss the complaint even before directing the issuance of summons; (b) authority of the plaintiff to serve the summons; (c) a new provision on validity of summons; (d) service on spouses; (e) what constitutes “reasonable time” for substituted service, as well as the grounds thereof; (f) additional persons authorized to receive for private juridical entities; (g) deputization of defendant’s counsel to serve summons improperly served; and (h) revisions on service of summons on foreign private juridical entities. 

COURT MAY DISMISS MOTU PROPRIO

Under the old 1997 Rules, the clerk of court issues the summons without need of directive from the judge and without any specific period to cause the issuance of summons. More importantly, the court cannot order the dismissal of the case at that point. 

Radical changes have been introduced in the 2019 Amendments. The court, motu prioprio, may dismiss the complaint if, on its face, it is dismissible based on the following grounds:

• the court has no jurisdiction over the subject matter 

• there is another action pending between the same parties for the same cause, or 

• the action is barred by a prior judgment or by statute of limitations

It is interesting that this Section does not include other grounds for dismissing a complaint, e.g., there is no verification page, or a defective certification against forum shopping. 

If the complaint is not dismissible, the court shall, within 5 calendar days from receipt of the initiatory pleading and proof of payment of the requisite legal fees, direct the clerk of court to issue the corresponding summons to the defendants. 

CONTENTS OF SUMMONS

The 2019 Amendments reproduces most of the required contents of summons under the old 1997 Rules. The summons shall be directed to the defendant, signed by the clerk of court under seal, and contain: 

• The name of the court and the names of the parties to the action; 

• A direction that the defendant answer within the time fixed by these Rules; and 

• A notice that unless the defendant so answers, plaintiff will take judgment by default and may be granted the relief applied for. 

A copy of the complaint and order for appointment of guardian ad litem, if any, shall be attached to the original and each copy of the summons.

However, the 2019 Amendments introduces one more required content — when authorized by the court upon ex parte motion, an authorization for the plaintiff to serve summons to the defendant. Under the old 1997 Rules, the plaintiff may accompany the sheriff or the process server, but cannot serve the summons on his/her own. 

BY WHOM SERVED

The summons may be served by the sheriff, his or her deputy, or other proper court officer.

SERVICE OF SUMMONS BY PLAINTIFF

One of the most significant changes introduced under the 2019 Amendments is the authority of the plaintiff to serve summons. 

In case of failure of service of summons by the sheriff or his deputy, the court may authorize the plaintiff to serve the summons – together with the sheriff. 

In cases where summons is to be served outside the judicial region of the court where the case is pending, the plaintiff shall be authorized to cause the service of summons. 

If the plaintiff is a juridical entity, it shall notify the court, in writing, and name its authorized representative therein, attaching a board resolution or secretary’s certificate thereto, as the case may be, stating that such representative is duly authorized to serve the summons on behalf of the plaintiff. 

If summons not served

If summons is returned without being served on any or all the defendants, the court shall order the plaintiff to cause the service of summons by other means available under the Rules. 

Failure to comply with the order shall cause the dismissal of the initiatory pleading without prejudice. 

Misrepresentation of plaintiff

If the plaintiff misrepresents that the defendant was served summons, and it is later proved that no summons was served:

• the case shall be dismissed with prejudice, 

• the proceedings shall be nullified, and 

• the plaintiff shall be meted appropriate sanctions. 

VALIDITY OF SUMMONS; ALIAS SUMMONS

A new section has been introduced under the 2019 Amendments, relating to the validity of summons and issuance of alias summons. 

Summons shall remain valid until duly served, unless it is recalled by the court. In case of loss or destruction of summons, the court may, upon motion, issue an alias summons. [Under the old 1997 Rules, alias summons is issued in case it is lost or in case the summons is returned without being served.]

There is failure of service after unsuccessful attempts to personally serve the summons on the defendant in his or her address indicated in the complaint. Substituted service may be resorted to (see below). 

SERVICE IN PERSON ON DEFENDANT

Whenever practicable, the summons shall be served by handing a copy thereof to the defendant in person and informing the defendant that he or she is being served, or, if he or she refuses to receive and sign for it, by leaving the summons within the view and in the presence of the defendant. 

SUBSTITUTED SERVICE

If, for justifiable causes, the defendant cannot be served personally after at least 3 attempts on 2 different dates, service may be effected: 

• (a) By leaving copies of the summons at the defendant’s residence to a person at least 18 years of age and of sufficient discretion residing therein; 

• (b) By leaving copies of the summons at the defendant’s office or regular place of business with some competent person in charge thereof. A competent person includes, but is not limited to, one who customarily receives correspondences for the defendant; 

• (c) By leaving copies of the summons, if refused entry upon making his or her authority and purpose known, with any of the officers of the homeowners’ association or condominium corporation, or its chief security officer in charge of the community or the building where the defendant may be found; and 

• (d) By sending an electronic mail to the defendant’s electronic mail address, if allowed by the court. 

The old 1997 Rules only provides for (a) and (b) and merely provides that substituted service may be resorted to if summons cannot be served “within a reasonable time”. The 2019 Amendments clarifies that “reasonable time” means at least 3 attempts on 2 different dates.

DUTY OF COUNSEL ON RECORD

A new, and very interesting, provision has been added in the 2019 Amendments. Where the summons is improperly served and a lawyer makes a special appearance on behalf of the defendant to, among others, question the validity of service of summons, the counsel shall be deputized by the court to serve summons on his or her client. 

[Note: This means that in case a motion ad cautelam is filed, seeking the dismissal of the complaint on the ground of improper service of summons, the motion is as good as not filed because the defendant’s can counsel can be deputized to serve the summons. See also: Motion to Dismiss.]

SERVICE UPON ENTITY WITHOUT JURIDICAL ENTITY

When persons associated in an entity without juridical personality are sued under the name by which they are generally or commonly known, service may be effected upon all the defendants by serving upon any one of them, or upon the person in charge of the office or place of business maintained in such name. But such service shall not bind individually any person whose connection with the entity has, upon due notice, been severed before the action was filed. The 2019 Amendments practically reproduces the provisions of the 1997 Rules, except the substitution of “brought” with “filed”. 

SERVICE ON PRISONERS

When the defendant is a prisoner confined in a jail or institution, service shall be effected upon him or her by the officer having the management of such jail or institution who is deemed as a special sheriff for said purpose. 

The 2019 Amendments practically reproduces the provisions of the 1997 Rules, but adds that the jail warden shall file a return within 5 calendar days from service of summons to the defendant.

SERVICE CONSISTENT WITH INTERNATIONAL CONVENTIONS

Service may be made through methods which are consistent with established international conventions to which the Philippines is a party. [This is a new provision in the 2019 Amendments.]

SERVICE UPON MINORS AND INCOMPETENTS

When the defendant is a minor, insane or otherwise an incompetent person, service of summons shall be made upon him or her personally and on his or her legal guardian if he or she has one, or if none, upon his or her guardian ad litem whose appointment shall be applied for by the plaintiff. In the case of a minor, service shall be made on his or her parent or guardian. [The section is practically a reproduction of the old 1997 Rules.]

SERVICE UPON SPOUSES

When spouses are sued jointly, service of summons should be made to each spouse individually. This is a new provision in the 2019 Amendments.]

SERVICE UPON DOMESTIC PRIVATE JURIDICAL ENTITY

When the defendant is a corporation, partnership or association organized under the laws of the Philippines with a juridical personality, service may be made on the president, managing partner, general manager, corporate secretary, treasurer, or in-house counsel of the corporation wherever they may be found, or in their absence or unavailability, on their secretaries. [Under the old 1997 Rules, service must be done in the address indicated in the complaint, and cannot be made on secretaries.]

The following new provisions have been introduced in the 2019 Amendments:

• If such service cannot be made upon any of the foregoing persons, it shall be made upon the person who customarily receives the correspondence for the defendant at its principal office. 

• In case the domestic juridical entity is under receivership or liquidation, service of summons shall be made on the receiver or liquidator, as the case may be. 

• Should there be a refusal on the part of the persons above-mentioned to receive summons despite at least 3 attempts on 2 different dates, service may be made electronically, if allowed by the court, as provided under Section 6 of this Rule. 

SERVICE UPON FOREIGN PRIVATE JURIDICAL ENTITIES

When the defendant is a foreign private juridical entity which has transacted or is doing business in the Philippines, as defined by law, service may be made on its resident agent designated in accordance with law for that purpose, or, if there be no such agent, on the government official designated by law to that effect, or on any of its officers, agents, directors or trustees within the Philippines. 

The preceding paragraph is practically a reproduction of the 1997 Rules, except: (a) the provision that the foreign entity is doing business in the Philippines as defined by law; and (b) service is also allowed on the directors or trustees, in addition to the entity’s officers or agent in the Philippines. 

The 2019 Amendments also adds that if the foreign private juridical entity is not registered in the Philippines, or has no resident agent but has transacted or is doing business in it, as defined by law, such service may, with leave of court, be effected outside of the Philippines through any of the following means: 

• (a) By personal service coursed through the appropriate court in the foreign country with the assistance of the department of foreign affairs; 

• (b) By publication once in a newspaper of general circulation in the country where the defendant may be found and by serving a copy of the summons and the court order by registered mail at the last known address of the defendant; 

• (c) By facsimile; 

• (d) By electronic means with the prescribed proof of service; or 

• (e) By such other means as the court, in its discretion, may direct.

SERVICE UPON PUBLIC CORPORATIONS

When the defendant is the Republic of the Philippines, service may be effected on the Solicitor General; in case of a province, city or municipality, or like public corporations, service may be effected on its executive head, or on such other officer or officers as the law or the court may direct. [This is a reproduction of the 1997 Rules.]

SERVICE ON DEFENDANTS WHOSE IDENTITY OR WHEREABOUTS ARE UNKNOWN

In any action where the defendant is designated as an unknown owner, or the like, or whenever his or her whereabouts are unknown and cannot be ascertained by diligent inquiry, within 90 calendar days from the commencement of the action, service may, by leave of court, be effected upon him or her by publication in a newspaper of general circulation and in such places and for such time as the court may order. [Except the additional provision on the 90-day period, this paragraph is practically a reproduction of the 1997 Rules.]

The 2019 Amendments adds that any order granting such leave shall specify a reasonable time, which shall not be less than 60 calendar days after notice, within which the defendant must answer. 

EXTRATERRITORIAL SERVICE

Service may, by leave of court, be effected out of the Philippines when the defendant does not reside and is not found in the Philippines, and the action 

• affects the personal status of the plaintiff or 

• relates to, or the subject of which is, property within the Philippines, in which the defendant has or claims a lien or interest, actual or contingent, or 

• in which the relief demanded consists, wholly or in part, in excluding the defendant from any interest therein, or 

• the property of the defendant has been attached within the Philippines,

In these instances, the mode of service shall be:

• by personal service by plaintiff (see discussion above); or 

• as provided for in international conventions to which the Philippines is a party [this is the only addition under the 2019 Amendments); or 

• by publication in a newspaper of general circulation in such places and for such time as the court may order, in which case a copy of the summons and order of the court shall be sent by registered mail to the last known address of the defendant, or in any other manner the court may deem sufficient. 

Any order granting such leave shall specify a reasonable time, which shall not be less than 60 calendar days after notice, within which the defendant must answer. 

RESIDENTS TEMPORARILY OUT OF THE PHILIPPINES

When any action is commenced against a defendant who ordinarily resides within the Philippines, but who is temporarily out of it, extraterritorial service may, by leave of court, be resorted to. [This is a reproduction of the provisions in the old 1997 Rules.]

LEAVE OF COURT

Any application to the court under this Rule for leave to effect service in any manner for which leave of court is necessary shall be made by motion in writing, supported by affidavit of the plaintiff or some person on his behalf, setting forth the grounds for the application. [This is a reproduction of the provisions in the old 1997 Rules.]

RETURN

The old 1997 Rules simply provides that when the service has been completed, the server shall, 5 days therefrom, serve a copy of the return, personally or by registered mail, to the plaintiffs counsel, and shall return the summons to the clerk who issued it, accompanied by proof of service. This has been significantly expanded under the 2019 Amendments.

• There is now a requisite period when to serve the summons and file a return. The sheriff or process server, or person authorized by the court, shall complete the service of summons within 30 calendar days from the issuance of summons by the clerk of court and receipt thereof. 

• Within 5 calendar days from service of summons, the server shall file with the court and serve a copy of the return to the plaintiff’s counsel, personally, by registered mail, or by electronic means authorized by the Rules. [The 5-day period is also provided in the old 1997 Rules, but the summons is returned to the clerk of court who issued it. Under the 2019 Amendments, the return is filed with the court and not given to the clerk of court.]

Should substituted service have been effected, the return shall state the following: 

• (1) The impossibility of prompt personal service within a period of 30 calendar days from issue and receipt of summons; 

• (2) The date and time of the 3 attempts on at least 2 different dates to cause personal service and the details of the inquiries made to locate the defendant residing thereat; and 

• (3)The name of the person at least 18 years of age and of sufficient discretion residing thereat, name of competent person in charge of the defendant’s office or regular place of business, or name of the officer of the homeowners’ association or condominium corporation or its chief security officer in charge of the community or building where the defendant may be found.

PROOF OF SERVICE

The proof of service of a summons shall be made in writing by the server and shall set forth the manner, place, and date of service; shall specify any papers which have been served with the process and the name of the person who received the same; and shall be sworn to when made by a person other than a sheriff or his or her deputy. 

The foregoing paragraph is a reproduction of the 1997 Rules. The 2019 Amendments, however, adds that if summons was served by electronic mail, a printout of said e-mail, with a copy of the summons as served, and the affidavit of the person mailing, shall constitute as proof of service.

PROFF OF SERVICE BY PUBLICATION

If the service has been made by publication, service may be proved by the affidavit of the publisher, editor, business or advertising manager, to which affidavit a copy of the publication shall be attached and by an affidavit showing the deposit of a copy of the summons and order for publication in the post office, postage prepaid, directed to the defendant by registered mail to his or her last known address. 

In the old 1997 Rules, the publisher is not included in the list, and the following are included: printer, his foreman or principal clerk.

VOLUNTARY APPEARANCE

The defendant’s voluntary appearance in the action shall be equivalent to service of summons. The inclusion in a motion to dismiss of other grounds aside from lack of jurisdiction over the person of the defendant shall be deemed a voluntary appearance. [The amendment turns the 1997 Rules on its head. See Motion to Dismiss.]